Clare Kennedy is a practicing lawyer in Scotland and holds an LLM in Human Rights and Humanitarian Law from Aberystwyth University.

‘It is widely recognised that humanity stands at a crossroads.  The scientific evidence points to the conclusion that the emission of greenhouse gases and the destruction of ecosystems at current rates will have catastrophic consequences for our common environment’.[1]  So begins the Commentary and Core Text by the Independent Expert Panel for the Legal Definition of Ecocide.  This Panel was set up by the Stop Ecocide Foundation with the sole purpose of drafting a definition for an international crime of ecocide – a crime that would seek to address the environmental catastrophe that has brought us to this crossroads.  Why though, with a number countries already criminalising ecocide at a national level and more now seeking to follow suit,[2] is recognition as an international crime thought to be necessary? 

The answer to this is that the current legal situation is entirely insufficient to protect the environment on the scale that is required to make any meaningful impact.  So few countries have ecocide legislation in place that it is impossible to employ the organised, unified approach necessary to tackle the problem that environmental damage poses.  The United Nations highlights the worldwide relevance of damage to the environment, noting that, ‘[f]rom shifting weather patterns that threaten food production, to rising sea levels that increase the risk of catastrophic flooding, the impacts of climate change are global in scope and unprecedented in scale’.[3]  Clearly much of the environment – air, sea, weather systems – is not bounded by State lines and, therefore, the impact of damage is often not contained to any particular jurisdiction.  This alone highlights the importance of a cohesive approach across States; something which is lacking in the current legal framework.  Indeed this is noted by Mackintosh, Mehta and Rogers, who are of the view that to prosecute ecocide at the International Criminal Court would ‘[acknowledge] that severe damage to our environment is a crime against all of us, and that we can no longer leave it to regulation by individual states’.[4]

Of course, this is not to say that all actions contributing to climate change are such that they would fall within the scope of an international crime of ecocide.  There may be crimes that contribute to climate change which fall short of amounting to ecocide and there will certainly be harmful acts committed by individuals that do not constitute criminal offences at all.  Action in many different areas must be taken in order to lower harmful emissions and combat global warming – international criminal law is just one of these.  International criminalisation of the most serious environmental damage would likely contribute to a change in attitudes towards the issue, highlighting the gravity of the current environmental situation and potentially prompting action in relation to lower-level damage not captured by this crime.  In other words, holding up the most serious ecocidal acts as crimes of international concern could help address the apathy felt by some individuals, governments and States in relation to the issues of climate change and environmental damage.

Another benefit of criminalising environmental damage at an international level is derived from the relative independence and impartiality of an international institution such as the International Criminal Court.  At a national level, it is possible that corporations causing and benefiting from environmental damage could exert influence politically.  As noted by Anastacia Greene, ‘domestic courts can be hampered by corruption and political interests.  Ecocide cases will undoubtedly tend to involve powerful government officials, or corporate leaders, who likely have considerable influence to intimidate, sway or suppress prosecutions’.[5] 

An example of such influence can be found in Australia in 2015, under the government of Tony Abbott.  At that time, development of coal mines within the vicinity of the Great Barrier Reef was a high-profile issue and one which was supported by the government.  Despite well-documented scientific concern over ongoing use of fossil fuels, Abbott, the then-Prime Minister, who had previously controversially stated, ‘let’s have no demonisation of coal.  Coal is good for humanity’,[6] lobbied Unesco in order to stop it from listing the Great Barrier Reef as “in danger”.  It was widely considered that the reason for Abbott’s stance on the issue was that such a listing ‘would prove highly problematic to mining companies’,[7] thus demonstrating the potential damage that close links between government and corporations can do to the cause of environmental protection.

This potential for corporate influence in domestic law-making and prosecution is further highlighted by some of the debate in the UK House of Lords surrounding the proposal of ecocide as a criminal offence.  Baroness Fox of Buckley described the sentiment behind a crime of ecocide as ‘anti-corporate’[8] and suggested that economic growth and development should be prioritised over environmental protection.  It may be that this attitude would be less prevalent within an international institution, which would focus more on the “big picture” in terms of global protection and priorities and would be less likely to entertain the view that further growth and development outweighs the need to protect the planet.  The ICC would, by its very nature and composition, be beyond the reach of influence by any one corporation, business or government.  The possibility of addressing the behaviour and influence of corporations and politicians is noted by Sailesh Mehta and Prisca Merz, who believe that prosecuting ecocide at an international level ‘would send the strongest possible signal to those who wield power within states and corporations, that unless they are willing to be part of the international solution, they will be dealt with as a cause of the problem’.[9]

There are, of course, limitations to the powers of the International Criminal Court.  The same criticisms that are made in relation to prosecution of the existing ICC offences – for example, bureaucratic inefficiency and difficulties caused by the fact that powerful countries such as China and the United States of America are not signatories to the Rome Statute – would apply equally to the prosecution of ecocide.  Whilst it has been noted above that corporate and political influence would be less of an issue for environmental prosecutions at the ICC than in national courts, such influence could still pose an issue at an earlier stage.  In order to get as far as being prosecuted at the ICC, an accused person must be apprehended domestically and surrendered to the Court.[10]  If the member State where the accused is located does not comply with a request to arrest and surrender the accused, there is no way for the ICC to proceed with the prosecution.  This required compliance by individual States presents an opportunity for interested parties, such as State or corporate officials, to exert pressure and influence over the initiation of proceedings.  However, these limitations, though essential to appreciate, are not so grave that they should halt the pursuit of environmental prosecutions.  In spite of the issues that will be encountered it is still undoubtedly worthwhile to seek a means to address acts amounting to the crime of ecocide.

Working on the basis that prosecution of environmental crime at an international level is necessary and desirable, the International Criminal Court is the obvious forum in which to conduct such cases and allow international criminal law to do what it can to assist in the fight against climate change.  Within the framework of the ICC, there are two broad options in terms of how to bring the crime of ecocide within the court’s remit.  The first of these would be to prosecute acts constituting ecocide under one of the existing ICC offences – war crimes, genocide, crimes against humanity or the crime of aggression.  The second option, and that which was envisaged by the Stop Ecocide Foundation’s expert panel, is to establish ecocide as a new, standalone offence, to be incorporated into the Rome Statute and prosecuted in its own right.  Such a measure may be just one tool at our disposal but it is one of which we should make urgent use.

[1] Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide: Commentary and Core Text’ June 2021, page 2

[2] Kate Mackintosh, Jojo Mehta and Richard Rogers, ‘Prosecuting Ecocide’ (Project Syndicate, 31 August 2021) <www.project-syndicate.org/commentary/the-icc-should-recognize-ecocide-as-an-international-crime-by-kate-mackintosh-et-al-2021-08>

[3] United Nations, ‘Global Issues: Climate Change’ <www.un.org/en/global-issues/climate-change#:~:text=Climate%20Change%20is%20the%20defining,scope%20and%20unprecedented%20in%20scale>

[4] Mackintosh, Mehta and Rogers (n 2)

[5] Anastacia Greene, ‘The Campaign to Make Ecocide an International Crime: Quixotic Quest Or Moral Imperative’ (2019) 30 Fordham Envtl L Rev 1, 45

[6] Gabrielle Chan, ‘Tony Abbott says ‘coal is good for humanity’ while opening mine’ (The Guardian, 13 October 2014) <www.theguardian.com/world/2014/oct/13/tony-abbott-says-coal-is-good-for-humanity-while-opening-mine>

[7] Oliver Milman, ‘Australia lobbies Unesco to stop it from listing Great Barrier Reef as ‘in danger’’ (The Guardian, 14 May 2015) <www.theguardian.com/environment/2015/may/14/australia-lobbies-unesco-stop-listing-great-barrier-reef-as-in-danger>

[8] Baroness Fox of Buckley, Environment Bill, Volume 813: debated on Wednesday 14 July 2021, at Column 1900, available at <www.hansard.parliament.uk/Lords/2021-07-14/debates/DF367669-A9E6-43F1-BD28-150371A4E2F5/EnvironmentBill>

[9] Sailesh Mehta and Prisca Merz, ‘Ecocide – a new crime against peace?’ (2015) Env. L. Rev. 17(1) 3, 3

[10] Rome Statute of the International Criminal Court [1998] United Nations, Treaty Series, vol. 2187, no. 38544, Article 59(1), available at <www.icc-cpi.int/resource-library/documents/rs-eng.pdf>